CCLME.ORG - Preassessment screening and oil spill compensation schedule regulations
Loading (50 kb)...'
State
Washington Regulations
Chapter 173-183 WAC Preassessment screening and oil spill compensation schedule regulations

Last Update: 5/12/03





--------------------------------------------------------------------------------

173-183-010
Purpose.
The purpose of this rule is to establish procedures for convening a resource damage assessment (RDA) committee, preassessment screening of resource damages resulting from oil spills to determine which damage assessment methods to use, and determining damages in cases where the compensation schedule is selected as the damage assessment methodology to apply. The RDA committee, utilizing the preassessment screening process, shall determine whether a detailed resource damage assessment studies should be conducted or whether the compensation schedule authorized under RCW 90.48.366 and 90.48.367 will be used to assess damages for each oil spill into state waters.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-010, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-020
Authority.
This regulation implements RCW 90.48.366, 90.48.367, and 90.48.368 of the Water Pollution Control Act, as amended in 1987, 1989, and 1991.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-020, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-030
Applicability.
This chapter shall apply to all oil spills into the waters of the state. Under this chapter, the department may require or take any and all actions necessary to investigate and assess damages from those spills.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-030, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-100
Definitions.
(1) "Columbia River estuary environment" means the habitat and all other public resources associated with or dependent on the estuarine waters of the Columbia River.

(2) "Compensation schedule" means the set of procedures enumerated in WAC 173-183-300 through 173-183-870 to determine the public resource damages resulting from an oil spill for cases in which damages are not quantifiable at a reasonable cost.

(3) "Damages" means the amount of monetary compensation necessary to:

(a) Restore any injured public resource to its condition before sustaining injury as a result of an oil discharge in violation of chapter 90.48 or 90.56 RCW, to the extent technically feasible, including any loss in value incurred during the period between injury and restoration in cases where damages are quantifiable at a reasonable cost; or

(b) Adequately compensate for the loss or diminution in value as determined through application of the compensation schedule provided in WAC 173-183-300 through 173-183-870 in cases where damages are not quantifiable at a reasonable cost.

(4) "Department" means the department of ecology.

(5) "Director" means the director of the department of ecology, or his or her designee.

(6) "Discharge" means any spilling, leaking, pumping, pouring, emitting, emptying, or dumping.

(7) "Estuarine environment" means the habitat and all other public resources associated with or dependent on estuarine waters of the state.

(8) "Estuarine waters" or "estuarine waters of the state" means the waters within state jurisdiction that are semienclosed by land but have open, partly obstructed, or sporadic access to the ocean, and in which seawater is at least occasionally diluted by freshwater runoff from land. Estuarine waters of the state include adjacent tidal flats and beaches up to the limit of tidal inundation or wave splash. For purposes of this chapter, estuarine waters of the state include those designated on the map attached as Appendix 1 to this chapter, and the portion of the Columbia River estuary within state jurisdiction upstream to river mile 46 or the line drawn perpendicularly across the river which touches the upstream end of Puget Island.

(9) "Freshwater stream, river, and lake environment" means the habitat and all other public resources associated with or dependent on the streams, rivers, and lakes under state jurisdiction.

(10) "Freshwater wetland" or "freshwater wetlands" means lands transitional between terrestrial and freshwater aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water, and lands having one or more of the following attributes at least periodically: The land supports predominantly hydrophytes; the substrate is predominately undrained hydric soil; and the substrate is nonsoil and saturated with water or covered by shallow water at some time during the growing season each year.

(11) "Freshwater wetland environment" means the habitat and all other public resources associated with or dependent on the freshwater wetlands of the state.

(12) "Freshwaters" or "freshwaters of the state" means all waters of the state except those classified as marine and estuarine waters of the state as defined in this chapter, including lakes, rivers, streams, ponds, other surface waters and wetlands.

(13) "Habitat" means the substrate and complement of associated biota not otherwise included in the vulnerability rankings in the applicable compensation schedule(s) that is part of this chapter.

(14) "Immediate removal" or "immediately removes" means removal of the spilled oil, or portions thereof, from the receiving environment by the potentially liable party within six hours of spill initiation.

(15) "Initial department responder" means the department of ecology spill responder who first arrives at the scene of the spill.

(16) "Injury" or "injuries" means an adverse change, either long- or short-term, to a public resource resulting either directly or indirectly from exposure to a discharge of oil in violation of chapter 90.48 or 90.56 RCW.

(17) "Loss in services" means a temporary or permanent reduction in the ability of the resource to provide its use or benefit to the public or to other resources.

(18) "Loss in value or lost value" of a damaged resource means the amount equal to the sum of consumptive, nonconsumptive, and indirect use values, as well as lost taxation, leasing, and licensing revenues during the period between injury and restoration; indirect use values may include existence, bequest, option, and aesthetic values.

(19) "Marine and estuarine habitats" mean the habitats found in marine and estuarine waters of the state as defined in this chapter.

(20) "Marine birds" means all seabirds, shorebirds, waterfowl, raptors and other avifauna that are dependent on marine and estuarine environments of the state for some portion of their life requirements including feeding, breeding, and habitat.

(21) "Marine environment" means the habitat and all other public resources associated with or dependent on marine waters of the state.

(22) "Marine fish," in context of the compensation schedule, means the species listed in Appendix 2.

(23) "Marine mammals" means the cetaceans, pinnipeds, sea otters, and river otters associated with marine and estuarine waters of the state.

(24) "Marine waters" or "marine waters of the state" means all coastal waters not appreciably diluted by freshwater, including open coastal areas, straits, and euhaline inland waters extending from the seaward limit of state jurisdiction to:

(a) The landward limit of tidal inundation or wave splash; or

(b) The seaward limit of estuarine waters of the state.

(25) "Not quantifiable at a reasonable cost" means any diminution in value of a public resource that cannot be measured with sufficient precision or accuracy by currently available and accepted procedures within a reasonable time frame.

(26) "Oil" or "oils" means naturally occurring liquid hydrocarbons at atmospheric temperature and pressure coming from the earth, including condensate and natural gasoline, and any fractionation thereof, including, but not limited to, crude oil, petroleum gasoline, fuel oil, diesel oil, oil sludge, oil refuse, and oil mixed with wastes other than dredged spoil. Oil does not include any substance listed in Table 302.4 of C.F.R. Part 302 adopted August 14, 1989, under section 101(14) of the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by P.L. 99-499.

(27) "On scene coordinator" (OSC) means the department official who supervises the spill response team and compiles the initial report concerning the facts and circumstances of the spill for the department.

(28) "Person" means any political subdivision, government agency, municipality, industry, public or private corporation, copartnership, association, firm, individual, or any other entity whatsoever.

(29) "Potentially liable party" means the person or persons who may be liable for damages resulting from an oil spill.

(30) "Preassessment screening" means the investigation and determination of the facts and circumstances surrounding an oil spill which are used to determine whether a damage assessment investigation should be conducted, or alternatively, whether the compensation schedule will be used to assess damages.

(31) "Public resources" or "publicly owned resources" means fish, animals, vegetation, land, waters of the state, and other resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the state.

(32) "Reasonable cost" for a damage assessment means a cost that is anticipated to be less than the amount of damages that may have occurred or may occur.

(33) "Receiving environment" means waters of the state exposed to the spill and all public resources associated with or dependent on the exposed waters.

(34) "Resource damage assessment committee" or "RDA committee" means the preassessment screening committee established under RCW 90.48.368 and charged with determining whether to conduct detailed damage assessment studies or to apply the compensation schedule for oil spills into waters of the state, and overseeing reconnaissance and damage assessment activities.

(35) "Restoration or enhancement projects or studies" means an activity that is intended to restore, replenish, restock, or replace public resources, or to further investigate the long-term effect of resource injuries as determined by the RDA committee for the benefit of the public.

(36) "Salmon," in context of the compensation schedule, means the species listed in Appendix 3.

(37) "Scientific advisory board" means the advisory group established by the department to assist in development of the compensation schedule as required by RCW 90.48.366.

(38) "Season" or "seasons" means winter, spring, summer, and/or fall, where winter occurs during the months December through February, spring occurs during the months March through May, summer occurs during the months June through August, and fall occurs during the months September through November.

(39) "Shellfish," in context of the compensation schedule, means the species listed in Appendix 4, but does not include privately grown shellfish on public lands.

(40) "Spill" means an unauthorized discharge of oil into waters of the state.

(41) "State" means state of Washington.

(42) "State trustee agencies" means the state agencies with responsibility for protecting and/or managing public resources.

(43) "Subregion" or "subregions" means the areas into which state marine and estuarine waters have been divided for purposes of the compensation schedule as designated on the maps attached as

Appendix 1.

(44) "Technical feasibility" or "technically feasible" means that given available technology, a restoration or enhancement project can be successfully completed at a cost that is not disproportionate to the value of the public resource before the injury.

(45) "Trust resources" means the public resource(s) under a particular state agency's jurisdiction for protection and/or management.

(46) "Unquantifiable damage" means any diminution in value of a public resource that cannot be measured with sufficient precision or accuracy by currently available and accepted procedures within a reasonable period of time.

(47) "Waters of the state" or "state waters" includes lakes, rivers, ponds, streams, inland waters, underground water, salt waters, estuaries, tidal flats, beaches, and lands adjoining the seacoast of the state, sewers, and all other surface waters and watercourses within the jurisdiction of the state of Washington.

(48) "Wetland" or "wetlands" means lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water, and lands having one or more of the following attributes at least periodically: The land supports predominantly hydrophytes; the substrate is predominantly undrained hydric soil; and the substrate is nonsoil and saturated with water or covered by shallow water at some time during the growing season each year.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-100, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-200
Preassessment screening process.
(1) Findings from the preassessment screening shall be used to determine whether a formal damage assessment investigation should be conducted or whether the compensation schedule will be applied to assess public resource damages associated with spills of oil into state waters.

(2) The preassessment screening process shall occur concurrently with reconnaissance and cleanup activities as defined in WAC 173-183-220(2).



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-200, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-210
Incident discovery and reporting.
The state on-scene coordinator (OSC) or initial department responder, shall provide prompt notice to the committee chair when there is evidence of an oil spill into state waters.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-210, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-220
Initial site reconnaissance and notification of the RDA committee.
(1) The on-scene coordinator (OSC) or initial department responder to an oil spill shall report the following to the RDA committee chair as soon as practicable:

(a) Initial determination of the type and character of the oil(s) spilled;

(b) Initial determination of location of the spill, general type of habitat(s) impacted, geographic coverage of the spill, and amount of oil(s) spilled; and

(c) Initial determination of potentially liable party identity.

(2) The RDA committee chair shall notify RDA committee members of an oil spill as soon as practicable after receiving a report by the OSC or initial department responder, and provide a preliminary assessment of the potential risks to public resources.

(3) The RDA committee may, upon notification of an oil spill, initiate or authorize the RDA committee chair to initiate any necessary reconnaissance activities to:

(a) Further identify public resources at risk;

(b) Determine the extent to which public resources are, or may be, adversely affected;

(c) Document actual or potential injury to public resources; and

(d) Determine which local, state, and federal agencies and Indian tribes may have interests or jurisdiction over any of the public resources that may be adversely affected by the spill.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-220, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-230
RDA committee.
(1) The following state agencies shall have membership on the RDA committee: Departments of ecology, fisheries, health, natural resources, wildlife, and the parks and recreation commission.

(2) Agencies with membership on the RDA committee shall nominate a representative and alternate to be appointed to the committee by the director.

(3) The department of ecology shall chair the RDA committee.

(4) The department may select representatives from the following agencies and governments for participation on the RDA committee on a spill-by-spill basis: Departments of emergency management, as well as other federal, state, and local agencies, and tribal and local governments whose presence would enhance reconnaissance or damage assessment activities of spill response.

If a selected representative declines or is unable to participate on the committee, the representative shall provide written notice to the department within twelve hours of being notified so that a replacement member may be appointed. Prompt consideration will be given to other local, state, or federal agency, or tribal government requests for participation on the RDA committee on a spill-by-spill basis.

(5) The RDA committee shall convene as soon as possible, but no later than thirty days after the department receives notification of a spill, or the next regularly scheduled meeting of the committee following a spill.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-230, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-240
Preassessment screening.
(1) The primary duty of the RDA committee during the preassessment screening is to determine whether detailed damage assessment studies should be conducted under RCW 90.48.367, or alternatively, whether the compensation schedule authorized under RCW 90.48.366 and 90.48.367 will be used to assess damages.

(2) The RDA committee shall consider information collected during reconnaissance and cleanup as well as other relevant background information pertaining to threatened public resources or resource use for the preassessment screening.

(3) The RDA committee shall consider the following factors when determining the type of damage assessment to be conducted:

(a) Whether evidence from reconnaissance investigations suggests that injury has occurred or is likely to occur to publicly owned resources;

(b) The potential loss in services provided by public resources injured or likely to be injured and the expected value of the potential loss;

(c) Whether a restoration project to return lost services is technically feasible;

(d) The accuracy of damage quantification methods that could be used and the anticipated cost-effectiveness of applying each method;

(e) The extent to which likely injury to public resources can be verified with available quantification methods; and

(f) Whether the injury, once quantified, can be translated into monetary values with sufficient precision or accuracy.

(4) The department shall apply the compensation schedule to determine the amount of damages if the RDA committee determines that:

(a) Restoration or enhancement of the injured resources is not technically feasible;

(b) Damages are not quantifiable at a reasonable cost; and

(c) The restoration and enhancement projects or studies proposed by the potentially liable party are insufficient to adequately compensate the people of the state for public resource damages.

(5) The RDA committee is encouraged to work cooperatively with the potentially liable party, to the greatest extent possible, to increase the efficiency of the damage assessment process, and shall provide for the ongoing involvement of the potentially liable party.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-240, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-250
Damage assessment studies.
(1) If the RDA committee, after considering the factors enumerated in WAC 173-183-240(3), determines that the damages to be investigated are quantifiable at a reasonable cost and that proposed assessment studies are clearly linked to quantification of the damages incurred, then the RDA committee may authorize damage assessment studies.

(2) If the RDA committee authorizes damage assessment studies under RCW 90.48.367(3), the RDA committee chair shall promptly notify the potentially liable party of this decision.

(3) The state trustee agency(ies) responsible for the potentially injured resource and habitat shall conduct the damage assessment studies and pursue all appropriate remedies with the responsible party. The RDA committee shall consider the proposed damage assessment studies and the effects of any proposed remedies in a timely manner, consistent with WAC 173-183-240(3).

(4) As new information becomes available, the committee may reevaluate the scope of damage assessment studies using the factors listed in WAC 173-183-240(3), and may reduce or expand the scope of damage assessment studies as appropriate.

(5) The department may negotiate with a potentially liable party to perform restoration and enhancement projects or studies which may substitute for all or part of the damages determined through the damage assessment studies.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-250, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-260
Restoration and enhancement projects proposed by the PLP.
(1) The potentially liable party (PLP) may propose restoration or enhancement projects or studies during the preassessment screening phase to substitute for some or all of:

(a) The damages calculated from the compensation schedule authorized under RCW 90.48.366 and 90.48.367; or

(b) The claims from damage assessment studies authorized under RCW 90.48.142 and 90.48.367.

(2) To be considered as part of the preassessment screening decision process specified in WAC 173-183-240, PLP proposals must be submitted to the RDA committee chair within ten days of PLP notification by the RDA committee.

(3) The RDA committee may accept the PLP proposal in lieu of some or all of:

(a) The damages calculated from the compensation schedule authorized under RCW 90.48.366 and 90.48.367; or

(b) The claims from damage assessment studies authorized under RCW 90.48.142 and 90.48.367.

(4) For the RDA committee to find a proposal sufficient to adequately compensate the people of the state for public resource damages, the PLP proposal must at least contain the following elements:

(a) An investigation of all potentially injured public resources to determine if they have been exposed to the spilled oil;

(b) Follow-up investigations on all public resources documented to be exposed to determine if exposure has resulted in injury;

(c) Follow-up investigations on all public resources documented to be injured by the spill to quantify the injury;

(d) Quantification of damages for all public resources where injury has been quantified; and

(e) Restoration/enhancement projects to compensate for public resource injuries to the extent technically feasible; and, for damages that cannot be compensated by technically feasible restoration or enhancement projects, implementation of projects/studies to compensate for these losses. Public resource restoration and enhancement projects and studies shall be prioritized as follows:

(i) On-site, in-kind;

(ii) Off-site, in-kind;

(iii) On-site, out-of-kind; and

(iv) Off-site, out-of-kind.

(5) Prior to the PLP initiating any projects or studies intended to substitute for damages, the PLP's proposal must be approved by the RDA committee. If a PLP proposal is found to be acceptable to the RDA committee, the committee shall notify the PLP of this decision.

(6) If RDA committee finds a PLP project and study plan proposal to be acceptable, the RDA committee shall oversee all projects and studies conducted by the PLP.

(7) Upon completion of the PLP's project and study plan, the RDA committee shall decide the extent to which the PLP's projects and studies substitute for public resource damages as identified in subsection (3) of this section.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-260, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-270
Participation.
To efficiently implement WAC 173-183-250 the RDA committee may develop public resource damage assessment agreements to facilitate cooperation between state and federal agencies and Indian tribes.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-270, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-300
Purpose.
The purpose of this section is to establish a compensation schedule that will provide a simple methodology for assessing damages to public resources from oil spills into fresh, marine, and estuarine waters of the state. The intent is to provide an alternate methodology to the extensive and expensive natural resource damage assessments presently being conducted following oil spills. This section provides the procedures for:

(1) Establishing the relative vulnerability of public resources to oil spills by taking into consideration the relative toxicity of the oil spilled and the sensitivity of public resources present in the receiving environment; and

(2) Determining adequate monetary compensation for injury to public resources resulting from an oil spill.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-300, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-310
Authority.
This regulation implements the establishment of a resource damage compensation schedule consistent with the provisions of RCW 90.48.366 for the discharge of oil in violation of chapter 90.48 or 90.56 RCW which requires the department to establish the compensation schedule in consultation with the departments of fisheries, wildlife, and natural resources, and the parks and recreation commission, and with the assistance of a scientific advisory board.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-310, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-320
Compensation schedule.
(1) The compensation schedule determines adequate compensation for unquantifiable damages or for damages not quantifiable at a reasonable cost for persons liable under RCW 90.48.142.

(2) Adequate compensation as determined from the compensation schedule is derived from preexisting information of resource vulnerability to a class of oil spilled in a particular subregion of the state during a particular season, plus any additional information collected at the reconnaissance stage of the spill response.

(3) Under RCW 90.48.366, the amount of compensation assessed under this schedule shall be no less than one dollar per gallon of oil spilled and no greater than fifty dollars per gallon of oil spilled.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-320, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-330
Resource damage assessment using the compensation schedule.
The compensation schedule includes:

(1) A relative ranking for each of the classes of oil defined in this chapter as determined by their known chemical, physical, and mechanical properties, and other factors that may affect the severity and persistence of the spill on the receiving environment;

(2) A relative vulnerability ranking of receiving environments which takes into account location of the spill, habitat and public resource sensitivity to oil, seasonal distribution of public resources, areas of recreational use and aesthetic importance, the proximity of the spill to important habitats for birds, aquatic mammals, fish, or to species listed as threatened or endangered under state or federal law, and other areas of special ecological or recreational importance as determined by the department;

(3) A quantitative method for determining public resource damages resulting from an oil spill, based on the oil effects and vulnerability rankings designed to compensate the people of this state for those damages that cannot be quantified at a reasonable cost that result from oil spills; and

(4) A method for adjusting damages calculated under the compensation schedule based on actions taken by the potentially liable party that:

(a) Demonstrate a recognition and affirmative acceptance of responsibility for the spill, such as the immediate removal of oil and the amount of oil removed from the environment; or

(b) Enhance or impede the detection of the spill, the determination of the quantity of oil spilled, or the extent of damage, including the unauthorized removal of evidence such as injured fish or wildlife.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-330, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-340
Oil class ranking.
(1) The purpose of this section is to provide a relative ranking of the severity of effects caused by a spilled oil. The ranking is based on the known chemical, physical, and mechanical properties of oils in the six classes identified in this section, as well as other properties affecting propensity to cause acute toxicity and mechanical injury, and to persist in the environment. For purposes of the compensation schedule, relative rankings of the severity of effects caused by a spilled oil are provided for the following classes of oils:

(a) Prudhoe Bay crude oil;

(b) Bunker C;

(c) No. 2 fuel oil;

(d) Gasoline;

(e) Kerosene; and

(f) Kerosene-type jet fuel.

(2) The relative ranking scores for the oil classes range from 1 to 5, where 1 represents the least harmful effect and 5 represents the most harmful effect. For purposes of RCW 90.48.366 and 90.48.367, the acute toxicity, mechanical injury, and persistence relative ranking scores for the oils described by the classes enumerated in subsection (1) of this section shall be as follows:


Table 1. Acute Toxicity, Mechanical Injury and Persistence Relative Ranking Scores for Classified Oils (OIL).


Oil Class Acute

Toxicity Mechanical Injury Persistence
Prudhoe Bay Crude Oil 0.9 3.6 5
Bunker C 2.3 5.0 5
No. 2 Fuel Oil 2.3 3.2 2
Gasoline 5.0 1.0 1
Kerosene 1.4 2.4 1
Kerosene-type Jet Fuel 1.4 2.4 1

(3) In cases where the spilled oil is not described by any of the oil classes listed in subsection (1) of this section, or is a mixture of oils, the department shall determine the acute toxicity, mechanical injury, and persistence scores as follows:

(a) By assigning the acute toxicity, mechanical injury, and persistence scores assigned to the oil class best describing the spilled oil from subsection (2) of this section; or

(b) By using the following guidance to determine the acute toxicity, mechanical injury, and persistence relative ranking scores:

(i) Acute toxicity relative ranking score. An acute toxicity raw score is determined by summing the weighted averages of the 1-, 2-, and 3-ringed aromatic compounds comprising the spilled oil and dividing this sum by 107, where aromatic compound composition is determined by percent-weight, and weighting is determined by aqueous solubility of the aromatic compounds, as described by the following formula:


Acute Toxicity Raw Score =

[(SOL1*PCT-WT1)(SOL2*PCT-WT2)(SOL3*PCT-WT3)]/107


where SOLi = solubility in seawater of i-ring aromatic hydrocarbons, and

PCT-WTi = percent weight of i-ring aromatic hydrocarbons in the spilled oil, i = 1, 2, and 3.


The final acute toxicity relative ranking score is determined by rounding the acute toxicity raw score to the nearest 0.1 using standard rounding procedures where decimals less than 0.05 are rounded down and decimals equal to or greater than 0.05 are rounded up.

(ii) Mechanical injury relative ranking score. A mechanical injury raw score is determined by subtracting 0.688 from the specific gravity of the spilled oil and dividing this result by 0.062 as follows:


Mechanical Injury Score = (SP - 0.688)/0.062

where SP = specific gravity of the spilled oil.


The final mechanical injury ranking score is determined by rounding the mechanical injury raw score to the nearest 0.1 using standard rounding procedures where decimals less than 0.05 are rounded down and decimals equal to or greater than 0.05 are rounded up.

(iii) Persistence relative ranking score. A persistence relative ranking score is determined from empirical data describing the length of time the spilled oil is known to, or is likely to, persist in a variety of habitat types. Scoring is assigned on a 1 to 5 scale as follows:


SCORE ANTICIPATED PERSISTENCE
5 5 - 10 years or more
4 2 - 5 years
3 1 - 2 years
2 1 month to 1 year
1 days to weeks.

(4) In cases where the spilled oil is comprised of two or more types of oil, damages shall be calculated under the schedule for each oil type and then summed to calculate total damages liability.



[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-340, filed 4/23/92, effective 5/24/92.]


Notes:

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency.




--------------------------------------------------------------------------------

173-183-400
Vulnerability of marine and estuarine environments to oil spills.
(1) The purpose of this section is to describe the method of ranking vulnerability of marine and estuarine environments, excluding the Columbia River estuary environment to oil spills for the purposes of assessing damages using the compensation schedule.

(2) Marine and estuarine waters of the state excluding the Columbia River estuary are divided into sixteen regions and one hundred thirty-one subregions for purposes of RCW 90.48.366, as designated on the maps attached as Appendix 5 of this chapter.

(3) A spill vulnerability score (SVS) shall be calculated at the time of a spill for the most sensitive subregion and season impacted by the spill. The SVS rates the vulnerability of public resources to spilled oil based on the propensity of the oil to cause acute toxicity and mechanical injury, and to persist in the environment. SVS is determined by summing the vulnerability scores for marine birds, marine mammals, fishery species, recreational use and habitats for the subregion(s) and most sensitive season impacted by the spill. The formula to be used to calculate SVS for each of the three oil effects, acute toxicity, mechanical injury, and persistence, is as follows:


Spill vulnerability score (SVS)ij=

HVSi BVSj MVSj MFVSj SFVSj SAVSj RVSj


where HVSi = habitat vulnerability to oil's propensity to cause i
BVS = marine bird vulnerability score (WAC 173-183-420(3));
MVS = marine mammal vulnerability score (WAC 173-183-460(3));
MFVS = marine fisheries vulnerability score (WAC 173-183-430(3));
SFVS = shellfish vulnerability score (WAC 173-183-440(3));
SAVS = salmon vulnerability score (WAC 173-183-450(5));
RVS = recreation vulnerability score (WAC 173-183-470(3));
i = acute toxicity (AT), mechanical injury (MI), or persistence (Per); and
j = the most sensitive season affected by the spill: Spring, summer, fall, or winter




[Statutory Authority: Chapter 90.48 RCW. 92-10-005 (Order 91-13), 173-183-400, filed 4/23/92, effective 5/24/92.]




--------------------------------------------------------------------------------

173-183-410
Marine and estuarine habitat vulnerability.
(1) The purpose of this section is to provide a marine and estuarine habitat vulnerability ranking. The marine and estuarine habitats present in the state are:

(a) Classified into thirty-seven types based on substrate type, energy regime and depth of occurrence; and

(b) Relatively ranked and scored for vulnerability to oil spills on a 1 to 5 scale, where a habitat vulnerability score (hv) of 5 represents the greatest vulnerability and an hv of 1 represents the least vulnerability.

(2) Marine and estuarine habitat vulnerability scores (hv) are based on the following:

(a) Presence of living public resources at risk, where living public resources include only those not otherwise incorporated into the compensation schedule in the marine fish, shellfish, salmon, marine mammal or marine bird vulnerability rankings of WAC 173-183-420 through 173-183-460; and

(b) Predicted sensitivity to the acute toxicity, mechanical injury and persistence effects of oil based on energy regime of the habitat and propensity to entrain oil.

(3) For purposes of RCW 90.48.366, marine and estuarine habitats of the state are classified into the following thirty-seven habitat types:

(a) Marine intertidal habitats.

(i) Exposed and semiexposed rocky shores. Bedrock and boulder habitats exposed to the full range of wave energies of the Pacific (i.e., on the outer coast), or to extensive wave fetch along the Strait of Juan de Fuca. Rocky areas on the coast partly protected behind sea stacks or islands also fall into this category.

(ii) Sand-scoured rocky shores. Rocky headlands or sea stacks directly adjacent to high energy sandy beaches such that there is much suspended sand in the water, which scours the rock. Unique plants and animals are found here.

(iii) Protected rocky shores. Bedrock and boulder habitats lacking oceanic swell and extensive wave fetch; e.g., inside waters of the San Juan Islands, headlands in bays off the Strait of Juan de Fuca or well protected behind islands on the outer coast.

(iv) Semiexposed cobble and mixed-coarse beaches. Beaches exposed to moderate wave action composed of cobble overlying sand, or to somewhat less wave action, with a mix of cobble, gravel, and sand where no one component occupies more than seventy percent of the surface. Algae may grow on larger cobbles, and animals live both on the surface and in the sediment. Species vary dramatically with degree of wave exposure and composition of the sediment. Found inside the San Juan Islands, outside of Whidbey Island, at semiprotected sites along the Strait, and behind island and sea stacks on the coast.

(v) Semiexposed gravel beaches. Unstable beaches, containing some sand in more protected areas. Many sites along the Strait of Juan de Fuca.

(vi) Exposed sandy beaches. Pure marine sands found in moderate to high-energy areas, e.g., on the outer coast and along the Strait of Juan de Fuca. Mouths of bays with some wave action also fall into this category.

(vii) Semiprotected mixed-fine beaches. Mixed sand and silt habitats, found in bays and inlets with some wave action so they are not dominated by the finer sediments (muds). Patches of gravel may be present high on the shore.

(viii) Protected mud flats. Areas of little to no wave energy, where fine sediments settle and accumulate organic matter. Found in calm bays and inlets with little freshwater influx (i.e., not estuaries).

(b) Marine subtidal.

(i) Shallow subtidal rock and boulders. Areas less than 15 m depth with some currents so that sediments do not totally cover bedrock. Kelp beds are found in these habitats, which are widespread in the state.

(ii) Deep subtidal rock and boulders. Areas deeper than 15 m and thus lacking in significant algal cover, but still with enough currents to keep the substrate exposed. Common in the San Juans and the Strait.

(iii) Deep subtidal cobble and mixed-coarse areas. "Scoured" areas in channels or passes with high currents, composed entirely of cobbles or with gravel and sand mixed in.

(iv) Shallow subtidal mixed-coarse to mixed-fine areas (low energy). Areas ranging from cobbles lying over a matrix of sand and gravel to mixed sand and silt, in waters less than 15 m. Bays and inlets commonly have this range of substrate types. Plants and animals exist both on the cobbles and in the sediment.

(v) Shallow subtidal gravel or mixed-fine areas (high energy). Areas just offshore of sand or gravel beaches, where swells or wave action keep fine sediments from accumulating. Substrates range from pure gravel to gravel mixed with sand and shells. Common in the Strait.

(vi) Deep subtidal sand. Areas deeper than 15 m in the Strait or on the coast where swells keep the substratum fairly coarse.

(vii) Deep subtidal mixed-fine areas. Areas of sand, shells, and pebbles with some currents removing finer particles.

(viii) Deep subtidal muddy areas. Areas with no swell and few currents, where fine silts settle out and accumulate organic matter.

(ix) Open water. Areas deeper than 20 m.

(c) Estuarine intertidal.

(i) Open rocky shores. Rocky intertidal areas (including hardpan and riprap) in areas exposed to moderate waves or currents, e.g., on headlands in Puget Sound.

(ii) Open mixed-coarse beaches. One of the most common beach types in Puget Sound, composed of a mix of cobble, gravel, and sand in areas with some wave action that keeps finer silts suspended. Sparse salt marsh vegetation may occur at the tops of these beaches, especially in quieter areas.

(iii) Open gravel beaches. Areas of gravel or pebbles, often overlying sand, in areas of moderate wave action.

(iv) Open sandy beaches. Common habitats of gently sloping beaches but moderate wave action. May have gravel on the upper shore. Found in Puget Sound and in some areas of other estuaries, including Grays Harbor.

(v) Sandy low marshes. Found on spits, berms, and deltas where sand collects. Areas of different salinities are dominated by different marsh plant communities. Widespread (although disturbed) throughout the Puget Trough.

(vi) Mixed-fine beaches and low marshes. Found in backwaters or deltas away from large channels, where the substrate is mixed sand and mud, sometimes with patches of gravel or peat. Substrate is stable and organic-rich. Marsh communities vary with salinity.

(vii) Saline lagoons. Areas where water-borne sediments are deposited into a spit closing off an embayment, which is flushed regularly or irregularly. Salinities vary with evaporation and runoff but are generally high.

(viii) Low-salinity lagoons. Lagoons that are nearly separated from tidal/salt influence by a berm, and where there is a source of freshwater. Substrate is usually soft silt. This habitat is rare in the state.

(ix) Mud flats. Areas lacking in gravel or significant amounts of sand due to limited wave action, usually found in the heads of bays and inlets. Includes undisturbed channels and sloughs which drain slowly through a tidal cycle, and which may contain some sand.

(x) High salt marshes. Areas above normal high water but salt influenced, with organic/peat substrata. Salinities vary, and plant communities with them.

(xi) Transition zone wetland. Areas transitional between salt marshes and uplands, where salt water only rarely inundates. Substrata are peat or fine silts.

(d) Estuarine subtidal.

(i) Shallow subtidal rock and boulders. Areas less than 15 m deep with moderate currents or wave action that remove silt. Kelp beds develop here.

(ii) Deep subtidal rock and boulders. Areas in narrow channels or around headlands where currents remove sediment that otherwise would settle in these deeper areas. These habitats are essentially marine, since freshwater tends to stay layered in shallow water.

(iii) Shallow subtidal cobble and mixed-coarse areas. Mixed cobble, gravel, and sand remain in shallow areas fairly open to wave action or currents.

(iv) Deep subtidal cobble and mixed-coarse areas. Tidal currents running through deep channels in Puget Sound keep fine silts from settling and create areas of mixed cobbles, sand, and gravel.

(v) Shallow subtidal sandy or mixed-fine areas. High-current areas with little debris and some gravel, or less current-swept with more debris. Both are common outside of enclosed bays in Puget Sound.

(vi) Deep subtidal sandy or mixed-fine areas. Current-swept areas below 15 m. Organic debris and gravel tend to accumulate deeper (below 30 m), leading to different assemblages there.

(vii) Shallow subtidal muddy bays. Common habitats in open to partly enclosed bays in Puget Sound, where limited water movement allows fine sediments to accumulate. Organic enrichment is high, especially in more enclosed bays.

(viii) Deep subtidal muddy bays. Habitats in the heads and centers of inlets in Puget Sound where there is little motion and the substrate is soft mud and sand. Assemblages vary with depth and amount of organic debris accumulated.

(ix) Open water. Areas deeper than twenty meters.

(4) For purposes of RCW 90.48.366, marine and estuarine habitat vulnerability scores (hv) for each of the habitat types classified in subsection (3) of this section shall be as follows:


TABLE 2. Habitat Vulnerability for a Single Habitat Type and Oil Effect (hv)


HABITAT VULNERABILITY (hv)
HABITAT TYPE ACUTE MECH PERS
(hvAT) (hvMI) (hvPER)
MARINE INTERTIDAL
Exposed and semiexposed rock

shores 3.7 4.3 3.1
Sand-scoured rocky shores 3.3 3.8 2.7
Protected rocky shores 3.0 3.5 3.0
Semiexposed cobble and
mixed-coarse beaches 3.2 3.2 3.2
Semiexposed gravel beaches 3.2 1.4 2.0
Exposed sandy beaches 2.9 1.3 1.8
Semiprotected mixed-fine beaches 3.2 2.6 3.7
Protected mud flats 3.8 2.7 4.3

MARINE SUBTIDAL
Shallow subtidal rock and boulders 3.7 3.7 3.1
Deep subtidal rock and boulders 2.7 2.7 3.3
Deep subtidal cobble and mixed

coarse 1.5 2.2 2.2
Shallow subtidal mixed-coarse to

mixed-fine 3.6 3.6 3.6
Shallow subtidal gravel or

mixed-fine 2.8 1.6 2.3
Deep subtidal sand 1.6 2.0 1.6
Deep subtidal mixed-fine 1.5 2.6 3.1
Deep subtidal muddy 2.0 2.0 3.2
Open water 5.0 3.2 2.2

ESTUARINE INTERTIDAL
Open rocky shores 3.0 3.5 3.0
Open mixed-coarse beaches and

low marsh 3.7 3.2 3.2
Open gravel beaches 3.4 1.5 2.2
Open sandy beaches 3.3 2.8 2.3
Sandy low marshes 3.5 3.0 3.0
Mixed-fine beaches and low

marshes 4.3 4.3 4.3
Saline lagoons 3.7 3.7 4.1
Low-salinity lagoons 3.0 3.5 3.9
Mud flats 3.7 2.6 4.1
High salt marshes 3.0 3.5 3.9
Transition zone wetlands 3.0 3.5 3.9

ESTUARINE SUBTIDAL
Shallow subtidal rock and boulders 3.2 3.2 2.6
Deep subtidal rock and boulders 2.3 2.3 2.8
Shallow subtidal cobble and

mixed-coarse 2.6 3.2 3.2
Deep subtidal cobble and

mixed-coarse 1.5 2.2 2.2
Shallow subtidal sandy or

mixed-fine 3.2 3.2 3.2
Deep subtidal sandy or mixed-fine 2.0 2.4 2.8
Shallow subtidal muddy bays 3.0 2.4 3.9
Deep subtidal muddy bays 1.8 1.8 2.9
Open water 5.0 3.2 2.2


(5) When seagrass or kelp are present in a particular habitat type, the portion of the habitat type with seagrass or kelp shall be treated as a separate habitat type. The habitat vulnerability for a particular habitat type and oil effect (hv) shall be multiplied by a factor of 1.5 for habitat types with seagrass or kelp present. The RDA committee shall be responsible for determining whether seagrass or kelp are present in a habitat type, and the portion of a habitat type containing seagrass or kelp.

(6) In general, several of the habitat types classified in this section may be affected by a particular spill. The habitat vulnerability score for a particular spill and oil effect (HVSi) is composite of the habitat vulnerability scores for each of the habitat types affected by the spill which takes into consideration the percent coverage of each habitat type in the area of spill impact.

(7) The habitat vulnerability score for a particular spill and oil effect (HVS) shall be determined as follows:

(a) For spills of 1,000 gallons or more. Sum the weighted habitat vulnerability scores for each habitat type exposed to the spill as described by the formula provided in (c) of this subsection, where weighting is defined by percent coverage of each habitat type within the area of spill exposure.

(b) For spills of less than 1,000 gallons. Sum the weighted habitat vulnerability scores for each habitat type present in the subregion(s) exposed to the spill as described by the formula provided in (c) of this subsection, where weighting is defined by percent coverage of each habitat type present in the subregion(s) exposed to the spill.

(c) The formula to calculate the raw habitat vulnerability score for a particular spill and oil effect (HVSi) is as follows:


HVSi = |nj=1 (hvij x PCj)
where PCj = Percent-coverage of habitat-type j expressed as a decimal; (continued)